This is the second of a two-part post on Thompson v Ontario. Part I discussed (1) the section 7 Charter analysis undertaken by Belobaba J of the Ontario Superior Court and accepted by the Ontario Court of Appeal; and (2) the Court of Appeal’s holdings on (a) the role of the application judge in adjudicating conflicting expert evidence; and (b) the interface between the section 7 and section 1 analysis in the context of individualized legislative schemes. Part 2 discusses how the decisions rendered in Thompson may inform future challenges to mental health legislation across Canada.

Mental Health Legislation and the Charter

Civil commitment as a legislative tool attracts both local and international attention for the significant power exercised by the state over individual liberties through mandating detention and treatment of individuals experiencing mental illness. This concern is deepened when the criteria for involuntary admission goes beyond the risk of serious bodily harm to encompass broader criteria of mental or physical deterioration.

Provisions pertaining to civil committal and treatment of involuntary patients are common across provincial and territorial mental health legislation in Canada. However, these regimes vary significantly in critical features, including criteria for admission, consent to treatment, review of involuntary detention, and jurisdiction of administrative tribunals connected to the regime.

Many mental health advocates hoped that the advent of the Charter would push Canadian mental health legislation towards rapid reform. However, a review of the jurisprudence suggests that such reform has been slow and mainly localized in Ontario. This slow reform has been attributed to a willingness by courts to accept and defer to the paternalistic underpinning of mental health legislation as well as an unwillingness to draw analogies between involuntary civil committal and treatment and the criminal law context (see Grant & Carver, (2016) 53(3) OHLJ 999).

On the latter point, the Ontario Court of Appeal’s decision in PS v Ontario, 2014 ONCA 900 [PS]—concerning involuntary civil committal that lasted over 6 months—represents a watershed moment. In PS, the Court of Appeal explicitly integrated Criminal Review Board jurisprudence in finding that the civil committal regime lacked the appropriate procedural safeguards to protect section 7 Charter rights. In a recent article on PS, Grant & Carver argued that this decision has national significance outside of the borders of Ontario. Despite the differences across provincial and territorial mental health statutes, there are commonalities between these legislative schemes and many of the features that informed the Court of Appeal’s reasoning in PS. Thus, the decision in PS may serve as an indicators of the “kinds of power required as a matter of constitutional law” for Review Boards to effectively uphold Charter rights.

Similarly, while Thompson v Ontario did not amount to a successful Charter challenge of the Ontario Mental Health Act, the judgments rendered by the lower court and Court of Appeal nevertheless may provide helpful insight into factors and considerations that may influence courts when faced with a section 7 challenge to involuntary civil commitment and treatment regimes. Specifically, the analysis undertaken about the purpose of the legislation and the procedural and the substantive safeguards embedded in the regime may provide some guidance to litigants in other Canadian jurisdictions who seek to challenge their provincial Acts. In doing so, Thompson may serve as an important “benchmark” upon which to measure the protection of civil liberties afford by other provincial legislation, and as a lesson on how to successfully advocate a section 7 Charter challenge. This issue is particularly topical given the recent constitutional challenge to British Columbia’s Mental Health Act launched in September 2016.

Thompson as a Benchmark for Procedural and Substantive Safeguards?

While the application judge or the Court of Appeal in Thompson did not explicitly identify any features of the statutory scheme as being determinative to the outcome of the analysis, the totality of the various features of the Ontario regime certainly can be argued to set the appropriate benchmark for assessing the constitutionality of involuntary commitment and community treatment orders (CTOs). Whether these features collectively will serve as a high watermark remains to be seen; however, there are notable differences between the Ontario legislative scheme and those of other provinces and territories along dimensions that were explicitly considered by both court levels in Thompson. These divergences may serve as fertile ground for litigation on enhancing procedural and substantive protections afforded by other provincial and territorial mental health legislative regimes.

Features of the Ontario Legislative Regime Highlighted in Thompson

There are a number of key features of the legislative scheme that featured prominently in the court’s analysis of its constitutionality:

Targeting: Box B criteria based on “substantial mental or physical deterioration” applies in circumstances where the individual has responded to treatment for the same or similar condition following a pattern of admission, stabilization, release, discontinuation of treatment or care and supervision, and deterioration of condition. This same pattern forms the basis upon which CTOs may be issued.

Procedural Protections: Before a CTO is issued, the physician must be satisfied that the individual subject to the order or their substitute decision maker (SDM) has consulted with a rights adviser and has been advised of their legal rights (MHA, s 33.1(4)(vi)). An individual who is deemed to be incapable of consent may apply to the Capacity and Consent Board for a review of the finding of incapacity.

Individualized Threshold for Issuance of CTO: The scheme contemplates individualized CTO based on a pattern of recurrent hospitalization resulting in stabilization followed by discharge, discontinuation of treatment, relapse and readmission. In order for a CTO to be issued, the individual must have a minimum number of previous hospitalizations or cumulate days in hospital over a given period of time (MHA, s 33.1(4)(i)).

Consent to Treatment: The individual subject to the CTO or their SDM (if they are deemed incapable of consent) must consent to the treatment plan (MHA, s 33.1(4)(vii)).

Overview of Differences Across Canadian Legislative Regimes

In an article published in February 2016, John Gray et al, provided a detailed account of the “Clinically Significant Differences among Canadian Mental Health Acts” as of January 2016. Many of the differences highlighted in this article go to the heart of the features of Ontario’s regime that became the focal point of the section 7 analysis in Thompson.

At the stage of involuntary admission, seven provinces (BC, Alberta, Saskatchewan, Manitoba, and Ontario) provide for the expanded civil commitment criteria of substantial mental or physical deterioration as an alternative to risk of bodily harm. However, Ontario is the only jurisdiction that provides for commitment on these criteria in the narrow subset of cases of individuals who have previously shown clinical improvement as a result of past treatment of the same or similar condition. The Acts also vary with respect to whether the individual must be found incapable of making treatment decisions before they are admitted. Only four jurisdictions have such a requirement. An individual cannot be involuntarily committed in Saskatchewan, Nova Scotia, and Newfoundland if they are fully capable of making admission or treatment decisions. In Ontario, a finding of incapacity within the meaning of the Health Care Consent Act is required before involuntary admission is authorized.

There are significant differences across Canada with respect to how treatment decisions are made for individuals who are involuntarily admitted – both in terms of who makes treatment decisions, and right to refuse treatment. In five provinces treatment is authorized by the state. In Saskatchewan and Newfoundland, this authorization is made by the attending physician; in BC it is made by the director of psychiatric unit, in New Brunswick a tribunal process is used, and the court system authorizes treatment in Quebec. In all other jurisdictions, authorization is provided by a private substitute decision-maker. In Ontario, individuals retain a right to refuse treatment where they have been deemed to be capable of consenting. In BC there is no right to refuse treatment. The Act presumes incapacity and deemed consent of all individuals who are involuntarily admitted.

Further to this, some jurisdictions but not others fully protect decisions made by the individual regarding treatment made when that individual was in a capable and competent state. Such treatment specifications cannot be overturned by the SDM, tribunals or courts of law in jurisdictions including Ontario, the Northwest Territories or the Yukon. In other jurisdictions, such as Alberta and Manitoba, there is a qualified right to refuse based on the “best interests” of the individual.

The issue of a “best interests” override was considered by the Ontario Court of Appeal in Fleming v Reid, 1991 CanLII 2728 (ONCA) [Fleming]. In Fleming the court held that provisions of the Ontario Mental Health Act which empowered the review board to authorize treatment of an involuntary and incompetent individual counter to the individual’s competent refusal for such treatment expressed through their SDM on the basis of a “best interests override” violated section 7 of the Charter. This finding was based on the lack of a requirement of the Board when making the override to fully consider the context and basis of the competent refusal. The Court held that procedural protections associated with a hearing were of “no answer” when the competent wishes were irrelevant to the Board’s determination. In discussing the importance of provisions taking into account the competent wishes of the individual, Robins JA emphasized that:

Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments.

With respect to CTOs, some provinces (Alberta, Quebec, and Saskatchewan) do not require a previous record of involuntary admission as a prerequisite to receiving a CTO order, meaning that individuals can be placed on a CTO upon their first involuntary admission.

It is trite to note that any Charter challenge of legislation must be framed within the context of that scheme’s specific legislative purpose. Notwithstanding this, if Thompson were to be applied as a lens for evaluating legislation in other provinces and territories, there is strong cause to believe that significant footholds exist in some jurisdictions upon which future legal challenges may find a foundation.

Litigation Strategy and the Role of Reasonable Hypotheticals in Section 7 Challenges to Mental Health Legislation

The Ontario Court of Appeal’s judgment on the issue of whether the application judge was required to render a conclusive finding on effectiveness of the treatment through involuntary commitment and CTOs and the discussion pertaining to the section 1/7 interface discussed in the previous post suggests an important directive for future litigants.

The applications judge and the Ontario Court of Appeal in Thompson focused the section 7 analysis on the individualized nature of the legislative regime, though it seems that much of the argument of the applicants focused on the broader expert evidence and empirical research challenging the effectiveness of antipsychotic medications and CTO regimes. At multiple points in both judgements, the court highlighted that the named applicant, Karlene Thompson, experienced positive improvement as a result of the treatment mandated by the CTO and suffered substantial deterioration of her condition upon discontinuing the CTO treatment plan.

In Thompson, the court was unable to make a finding of deprivation not in accordance with principles of fundamental justice based on the treatment experience of Thompson and on the general argument of effectiveness of the treatment. On the objective of improved treatment for seriously mentally ill individuals accepted by the court, the factual matrix of Thompson was insufficient to support a finding of no rational connection between the law and its effect on Thompson. Further, the application judge could not ground a Charter breach based on general expert evidence in the face of rebuttal evidence from the Crown. This is consistent with the SCC’s articulation of the section 7 test in Bedford and Carter, which hold that the focus of the inquiry in relation to arbitrariness and overbreadth is on the individual and whether the effect on them is rationally connected to the law’s purpose, and not on broader societal impacts.

A stronger litigation strategy to argue a Charter rights breach in a case like Thompson would have been to adduce evidence of another applicant or party for whom the treatment regime was ineffective and/or had a detrimental effect, or to raise a sound reasonable hypothetical in which (given the public interest standing of the applicant) to ground an argument of a deprivation out of sync with the dual purpose objective accepted by the court. It is clear from the judgment in Thompson that the application judge was alive to the debate surrounding the effectiveness of CTOs in particular, even going so far as to note “that the impugned amendments enacted by Brian’s Law may not be working as intended and may be causing more harm than good” (Thompson, ONSC at para 90). In my view, it was in this space—the situations in where CTOs do more harm than good—where the crux of a successful Charter claim lied.

An argument based on overbreadth could have been advanced based on the subset of individuals who are unresponsive or respond negatively to the treatment regime imposed. There may also be an argument to be made for gross disproportionality where the treatment imposes negative outcomes on the individual. Behind the empirical research and expert evidence adduced by the applicants in Thompson may be concrete examples or reasonable hypotheticals upon which to advance a disconnect between “improved treatment” and the impugned provisions.

The use of reasonable hypotheticals in a section 7 challenge of legislative treatment regimes may be of critical importance given the systemic barriers that individuals with mental illnesses already face in accessing the court system and the potential for clinical improvements to overshadow infringements on dignity and liberty. Further, they may allow for a more effective strategy to break the barrier of demonstrating legislative effects sufficient to establish a section 7 breach. This will enable the conversation to move into the realm of a section 1 analysis, which places the onus on the government to justify the legislative scheme. It is here where considerations of proportionality and minimal impairment may yield fruitful advancements for legislative reform.

Influencing, Challenging, and Reviewing Treatment Orders

As discussed above, some legislative schemes in Canada do not provide an explicit voice for the individual subject to treatment to consent to, influence, or challenge the treatment imposed upon them. Even in Ontario, while the involuntarily admitted individual or their substitute decision maker’s consent is explicitly embedded as a legislative requirement for a CTO to be issued, this raises the question (as argued by the CCLA in Thompson) of whether consent to treatment can be freely given where the alternative is involuntary detention.

In Fleming v Reid, the Ontario Court of Appeal acknowledged the right of an individual of a competent mind to make binding directives in relation to their treatment. However, the civil commitment regime in Ontario for example does not explicitly provide guidance on incorporating the wishes of an individual who has strong opinions pertaining to their treatment outside of competent advanced directive circumstances. While the Consent and Capacity Board is granted an explicit role in reviewing declarations of incapacity to consent and reviewing whether the criteria for the issuance of a CTO is met, this does not encompass a procedure for the individual subject to challenge the substance of their CTO.

The question that this raises is whether it is enough for a CTO to be an individualized assessment regime when past treatment and experiences of an individual may (in the absence of a competent directive) take precedent over the potential wishes of the individual in the moment. This may not only deprive individuals of access to the treatment that is most appropriately suited to their needs, but may further societal perceptions of mental health and illness as being static rather than dynamic, and individuals diagnosed with mental illnesses as being incapable of exercising any level of reasoned reflection on their treatment experience. As Day J noted in Neto v Klukach, 2004 CanLii 6325:

Those with mental illness are perhaps most vulnerable to having their experiences with reactions to medications and personal views regarding treatment options not taken seriously, but instead attributed to the mental illness itself, if contrary to what is considered conventional wisdom.

Conclusion

PS and Thompson are a welcome gateway into fulsome discussion on Charter rights and mental health legislative schemes and the challenges that governments face in effectively legislating in this area. Thompson raises the specifically poignant issue of treatment decisions. In Thompson we saw the court grappling with evidence pertaining to the nature and effect of neuroleptic drugs similar to those embedded in the Court’s decision in Fleming over two decades ago. There is an acknowledgement in both “eras” of discussion that the effects and risks of treatment are highly individualized. This is perhaps the crux of the challenge in this area of law – how to balance the highly individual nature of mental health with perceived issues of public safety and the “best interests” of patients. And even further, how can we achieve this balance in an era of section 7 jurisprudence where a breach can be established based on an unconstitutional impact on a single person?

On a more fundamental level, governments (and courts) may be called upon to consider whether “best interests” continue to be a justifiable basis upon which to make decisions regarding mental health legislation. Mental health law in Canada has been described as following a pendulum between “easy interventionism” premised on access to treatment and “vigorous assertions of autonomy” with strict safeguards against unwanted treatment (Kaiser, 2009 17 Health LJ 139) . Archibald Kaiser argues that this pendulum is currently at a standstill, where “paternalism, interventionism, coercion and clinical discretionary powers have continued to dominate” and are accompanied with a “minimization of advocacy supports, key procedural protections, judicial or tribunal scrutiny and the least restrictive, least intrusive and least onerous principle” in making treatment decisions. While it is well within the purview of the legislature to make policy decisions surrounding provincial mental health regimes in which the aforementioned considerations dominate, those decisions are still subject to constitutional scrutiny about both their procedural protections and considerations about the proportionality and minimal impairment of the liberty interests of the individuals affected.

Kiran Mahal is a third-year student at Osgoode Hall Law School. She is an Editor for theCourt.ca and is the current Managing Editor of the Osgoode Hall Law Journal. Kiran holds a BSc in Biochemistry from the University of British Columbia - Vancouver.